Performing Credibility : Assessments of Asylum Claims in Swedish Migration Courts
Type of text: Academic article
Published by: Retfaerd. Nordisk Juridisk Tidskrift
Author: Livia Johannesson
Short description of text:
‘The overall aim of this study is to investigate how non-credibility is justified in court decisions on asylum claims, as it is a particularly decisive component of the overall adjudication process in these cases’ (p. 70).
Most important results
– ‘All decision in this sample where rejected with reference to one or several of the formal principles for determining credibility that is stipulated in judicial handbooks. Five of the applications lacked any kind of documentation, including identity cards or passports … In the court decisions, it was frequently stressed that the applicants lacking documents may deliberately be withholding information, which resulted in undermining the applicants’ credibility in the eyes of the court. In two of the decisions that had documents submitted, the Migration Board and the court suspected the documents to be fabricated. This severely undermined these two applicants’ credibility in general. Additionally, inability to meet formal principles that had to do with the way the asylum narrative was presented was a common reason for assessing the applicants as non-credible. This included articulation about including facts in the narrative that did not comply with general facts, telling the narrative without details, or changing any details of the narrative from one hearing to the next throughout the process’ (p. 75-6).
– The country information in the digital information database Lifos ‘was the main source of »general known facts« that the adjudicators referred to when opposing a statement of the applicant (and thereby undermining her or his credibility).
It was obvious that the information from Lifos and the accounts from the applicants were not considered to have the same reliability in the eyes of the court. In fact, it appeared that the information from Lifos was taken as an unquestionable truth by the migration court. Nowhere in the decisions was any discussion about how reliable or up to date the information from Lifos could be considered to be, or to what extent an individual asylum narrative could be required to correspond to the general statements and snapshot images that an international expert report could muster. In two examples from two different court decisions it was particularly evident that cultural norms that were stated in a Lifos report were treated as evidence for asylum narratives being unreliable … In both of these examples general categories such as »women/men« and »Shia/Sunni/Greek Orthodox« were perceived as fixed and static, and any variation within or between them was not taken into account. This shows how abstract categorizations can be used in a very concrete way to exclude subjects that do not fall within the majority description of that category … These examples illuminate the often-irreversible consequences that single formulations from one or a few sources can have for large groups of asylum applicants’ chances to be understood as credible … Following from this confusion of what is locally known with what is necessary universally true, is that asylum narratives have two contradictory criteria to live up to in order to be conceived as credible. The first is to be recognized as authentic and self-experienced, and the other is to be coherent with the information that the Migration Board has access to from the Lifos database, no matter how up to date or well confirmed that information is. Another contradiction arises as the information in Lifos tries to capture the most significant norms and behavioral patterns in a specific region or country. That information is then used to evaluate the credibility of individual asylum narratives. The problem is that peoples’ motives for fleeing often have to do with their inability to live according to the norms and behaviors that govern their surroundings’ (p. 77-78).
– ‘[…] credibility assessments frequently were grounded in general presumptions about how individual asylum applicants should behave according to the general categories gender, education, and religion, without references to any particular source of knowledge. In these occasions, the frames of intelligibility were not constructed around existing information from Lifos, but consisted of much more informal presumptions of what type of proper conduct that was attached to different identity categories.
Level of education was one of the categories that appeared as something that the plausibility of the asylum narratives was measured against […]
There were three decisions in the sample that included statements about honorrelated cultures. The analysis of these statements revealed that the migration authorities had presumptions about certain types of logics that govern these kinds of cultural expressions, without explicitly referring to any particular source of information” (p. 78-9).
- ‘What was apparent from these statements was that profoundly unstable catego-
rizations such as religious affiliation, gender, and culture were perceived as stable and essential. The intersectional analysis suggests that the legal discourse leaks of informal presumptions about how structural categories determine proper conduct for individual asylum applicants. These presumptions were occasionally formalized by references to expert reports, but more often it was just an unconfirmed, but seemingly taken for granted, general assumption about how people in other countries behave according to certain general categories such as gender or religion’ (p. 80).
– ‘At the same time as the migration court procedure puts a lot of effort into defining the applicants according to various kinds of identity categories with more or less explicit presumptions attached to them, the position possessed by the Migration Board remains to a large extent silent and unmarked. Consequently, it is much easier to aspire to neutrality and impartiality from the position of the Migration Board than it is from the position of the gendered and »culturalized« asylum applicant. The position of the asylum applicant has emerged because of the asylum applicant’s interest in obtaining permission to stay in Sweden, and therefore that position is tied to a partial interest: i.e. the interest to stay. The position of the Migration Board is not supposed to have any particular interest tied to it, except for the interest of following the regulations that define the authority’s legitimate actions. However, in the court procedure, the Migration Board takes on the role of being in opposition to the asylum applicant, and therefore is assigned the interest of not letting the applicant stay. In that way, the neutral position of the Migration Board is transformed to a partial position in the court procedure’ (p. 82).
– ‘The analysis suggests that the way that informal presumptions about categorizations were articulated in the decisions indicated that they actively limited the possibilities for unique and deviant asylum narratives to get recognized as credible in the court procedure. This argument builds on three major conclusions drawn from this study. Firstly, the information contained in the Lifos database was treated as neutral and objective facts by the migration court, even when the sources consisted of briefly conducted reports about essentially contested issues such as the scope and character of honor-related violence in a country. Secondly, the migration court relied on informal presumptions about how categories determined proper conduct in various cultural settings when making judgments about asylum applicants’ credibility … Thirdly, the courts rejected to take notice of the applicants’ occasional attempts to mark the Migration Board as culturally specific and thereby a non-neutral counterpart. The consequence of letting presumptions about categorizations such as gender, education, religion and culture intervene in the justifications for rejections was that the applicants’ abilities to perform credibility in the court procedure were constrained and directly affected by how the frames of intelligibility at the Swedish migration authorities were constructed’ (p. 83).
Intersectional approach focusing on the performative aspects of identity formations and situated identity constructions embedded in wider webs of power relations.
‘The method used to explore how subjects are defined and marked with categorizations in the court decisions is inspired by discursive psychology, which enables analysis of daily practices at a micro level (s. 73).
Analysis of court decisions from 2010 of asylum cases appealed at the Migration Court of Appeal, ‘where the sufficiency-criteria are fulfilled but the credibility-criteria are presented as the basis for rejection’ and ‘where oral hearings had been held at the courts, as this indicates that credibility was decisive for the decision’, supplemented with a few decisions from 2009 and 2007, where these cases had been sent back for a new trial at the migration courts due to inaccuracies in the oral procedure’ (p. 75). In total ‘a sample of nine decisions on rejection which all had an oral hearing at the court because the credibility of the applicant had been questioned by the Migration Board, however not the sufficiency of the asylum claims (p. 75).